Berishaj a Kreiner Hit and Run – Michigan’s Auto Accident Law is Nation’s Worst

October 27, 2009by Steven Gursten

15 Months Off Work and Unable to Walk From Personal Injuries Is Not “Serious Enough”

If there’s one truth to emerge from the horrifically flawed Michigan Supreme Court ruling in Kreiner v. Fischer, a case that has doomed thousands of auto accident victims in Michigan, it is this:

The word “normal” doesn’t mean what you think it does.

At least not for innocent Michigan residents who have suffered serious personal injury from car accidents and must now follow Alice into Wonderland. Linda Berishaj has had to learn that lesson the hard way.

Despite undisputed evidence documenting how a horrific motor vehicle collision drastically altered her life, Ms. Berishaj was just told by a three-judge panel of the Michigan Court of Appeals that her collision-related injuries didn’t prevent her from resuming the “normal life” she had enjoyed before the crash.

What makes this latest ruling, Berishaj v. Shkreli, et al., so bewildering, outrageous, and injust, however, is not simply that it is the latest extension of our Supreme Court’s tortured, judicially activist ruling in Kreiner.

What’s really bewildering is that the Court of Appeals could look at the injuries suffered by Ms. Berishaj as a result of her car accident and just dismiss them as if she were complaining about a skinned knee.

Some “skinned knee!”

Is Berishaj the Worst Kreiner Casualty Yet?

Before her car crash, Ms. Berishaj went to work everyday at a job that required physical activity. She walked freely and independently without the use of prostheses. She had no problems with concentration or pain.

That life came to a screeching halt the day of her accident.

Her crash-related injuries disabled her from working for 15 months.

As an attorney handling auto accidents, I’ve read all the cases interpreting Kreiner and Michigan’s auto threshold law. Fifteen months makes Berishaj the longest in “time off work” after an auto accident that I am aware of. The Court of Appeals has essentially said that 15 months off work is not “serious enough” to constitute a serious impairment of body function under Kreiner.

Not serious enough? Really?

But Ms. Berishaj didn’t return to her job after 15 months. When her doctors did clear her, they imposed physician restrictions. First, Ms. Berishaj couldn’t return to the job she had before the collision. Second, she was restricted to working a desk job. And third, she could work only if she used a walker.

But that’s not all. For the first five months after the car accident, Ms. Berishaj’s injuries confined her to a wheelchair. For the next five months, she could walk only with the assistance of a walker. Now, for the indefinite future, Ms. Berishaj can’t walk without the assistance of a cane.

In addition to losing the ability to work her previous job and having to abide by the other restrictions, Ms. Berishaj has concentration problems and pain prevents her from attending work meetings.

Ms. Berishaj raised these points in her lawsuit seeking compensation for the pain and suffering she has and will continue to endure as a result of her serious accident-related injuries.

Serious Impairment Car Accident Injuries Fall on Deaf Ears

So far, her pleas have fallen on deaf ears in Michigan courts. (Read the following blog on other injury cases that have been shot down because of Kreiner.) Macomb County Circuit Court Judge James M. Biernat Sr. dismissed Ms. Berishaj’s case when asked to do so by the insurance lawyers hired to defend the negligent driver who had caused her injuries.

And when she appealed that ruling to the Michigan Court of Appeals, the appellate judges were shockingly unsympathetic to her plight. In a per curiam opinion signed by Judges Christopher M. Murray, Jane E. Markey, and Stephen L. Borrello, the judges said Ms. Berishaj “had failed to establish that her impairments ‘affected [her] general ability conduct the course of … her normal life.'”

In reaching its outlandish conclusion, the Court certainly glossed over Ms. Berishaj’s injuries preventing her from doing her job for a year and three months, and preventing her from returning to the job she had had prior to the collision. Instead, they pointed out that “[n]onetheless, she returned to work 15 months after her accident,” as if to say “So what if she missed a little work? She eventually went back to work, didn’t she? That’s all that matters.”

Importance of Work Not a Priority to Michigan Courts

Regrettably, these Court of Appeals judges make no mention of the importance of work in peoples lives. Someday, this common sense approach may come back into favor in Michigan courts, despite having long ago been washed away in the messy wake of the Supreme Court’s Kreinertravesty by the “Majority of Four.”

In 2003, slightly more than one year before the Supreme Court would hand down its ruling in Kreiner, Judge William B. Murphy wrote the following in the Court of Appeals’ Kreiner opinion:

“We find that one’s general ability to lead his or her normal life can be affected by an injury that impacts the person’s ability to work at a job, where the job plays a significant role in that individual’s normal life … Employment or one’s livelihood, for a vast majority of people, constitutes an extremely important and major part of a person’s life. Whether it be wrong or right, our worth as individuals in society is often measured by our employment. Losing the ability to work can be devastating; employment, regardless of income issues, is important to a sense of purpose and a feeling of vitality. For those working a standard forty-hour work week, a quarter of their lifetime before retirement is devoted to time spent on the job. An injury affecting one’s employment and ability to work, under the right factual circumstances, can be equated to affecting the person’s general ability to lead his or her normal life. For many, life in general revolves around a job and work. It would be illogical to conclude that where a person loses the ability to work because of an injury resulting from a motor-vehicle collision, after being gainfully employed, the person’s life after the accident, in general, would be unaffected.”

Although the Court of Appeals miraculously and necessarily acknowledged that walking was an important body function, it flat-out ignored the fact that Ms. Berishaj has not and likely will never regain her ability to walk freely, independently and without the assistance of a wheelchair, walker or cane.

Ms. Berishaj’s case is not only another casualty of the Supreme Court’s absurd and ill-conceived ruling in Kreiner, but it is also another gut-wrenching example of how devastatingly unjust Kreiner has become and how shocking our auto accident threshold law must now appear to any resident of this state.

Considering the:

o Unworkable framework of Kreiner’s analysis,
o Distorted interpretation the Court of Appeals and the trial courts have given Kreiner,
o Cover Kreiner provides any trial court and appellate judge – as well as Supreme Court justices – to ignore the plain, compelling and dramatic facts presented by pain-ridden and suffering motor vehicle accident victims…

It’s time to demand that Kreiner and the Kreiner-era body of jurisprudence be brought to its long-overdue end.

Soon.

– Steven M. Gursten is recognized as one of the nation’s top attorneys handling serious car and truck accident injury cases and automobile insurance no-fault litigation. Steve has received the largest jury verdict for an automobile accident case in Michigan in four of the past seven years, including 2008, according to Michigan Lawyers Weekly.

Michigan Auto Law is the largest law firm exclusively handling car accident, truck accident and motorcycle accident cases throughout the entire state. We have offices in Farmington Hills, Detroit, Ann Arbor, Grand Rapids and Sterling Heights. Call (800) 777-0028 for a free consultation with an auto accident attorney.

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